The state is responsible for the debts of a liquidated enterprise only if it has no or insufficient property and is unable to capitalize payments in this case.

The plaintiff, Kaya L.N., appealed to the Shakhty City Court of the Karaganda region with a claim to the Ministry of Health and Social Development of the Republic of Kazakhstan to capitalize payments for compensation for lost earnings, to compensate for harm to health, and to recover from the republican budget an amount of 1,038,141 tenge in compensation for harm to health, arguing Her requirements are that she worked at DSU-82 as a laboratory assistant from 09.01.1984. According to Act No. 1 of the accident investigation on the way from work dated 06.01.1984 and Act No. 1 on industrial accidents dated 14.05.1987, accidents at work occurred to her.

According to the certificate of disability No. 183 dated 06/15/2011, the plaintiff was recognized as a disabled person of the second group, the cause of disability is labor injury. In this regard, she received monthly lost earnings from her employer. In 1998, AOOT Karagandadorstroy, of which DSU82 was a branch, began the self-liquidation procedure. On 03/10-2000, this company was removed from the state register of legal entities.

Since 1999, she has not received health compensation payments. The capitalized time-based payments were not made and paid to her. Compensation for damage to health from Dorstroy OJSC, to which wage arrears and capitalized payments were transferred according to the dividing balance sheet, was refused by the court, due to the fact that this enterprise is not the legal successor of Karagandadstroy. She requested to capitalize the amounts of compensation for lost earnings, for harm caused to health, and to recover from the defendant the amount of compensation for harm to health for the period from 04/01/2000 to 05/16/2017 in the amount of 1,038,141 tenge in accordance with paragraph 3 of Article 945 of the Civil Code, due to the absence or insufficiency of property of the liquidated legal entity. The claim was partially satisfied by the decision of the Shakhty City Court of the Karaganda region dated June 01, 2015. In satisfying the claims of Ms. L.N. the request to the Ministry of Health and Social Development of the Republic of Kazakhstan on the capitalization of payments for compensation of lost earnings, on account of compensation for harm to health was refused. An amount of 1,038,141 tenge was recovered from the defendant of the Ministry of Health and Social Development of the Republic of Kazakhstan in favor of S.L.N. in compensation for damage caused to health.

By the resolution of the Appellate Judicial Board for Civil and Administrative Cases of the Karaganda Regional Court dated July 22, 2015, the court's decision was changed, it was decided: to cancel the decision regarding the recovery of 1,038,141 tenge from the Ministry of Health and Social Development of the Republic of Kazakhstan in favor of Ms. Lyubov Nikolaevna, as compensation for damage caused to health, and in In this part, make a new decision to dismiss the claims.

In the cassation appeal, the plaintiff's representative expressed disagreement with the judicial acts, asked them to cancel them because they were illegal and unfounded, and asked for the decisions of the court of first instance to be upheld. As follows from the materials of the case, AOOT "Karagandadorstroy" paid the plaintiff some sums to compensate for the damage caused to health. During the liquidation of JSC Karagandadorstroy, wage arrears, amounts of capitalized time-based payments to be paid in compensation of damage, and fixed assets for further work and repayment of unpaid wages were transferred to the newly created enterprise JSC Dorstroy according to the dividing balance approved by the general meeting of shareholders of JSC Karagandadorstroy on September 11, 1998. wages and amounts of capitalized payments. The lists of unpaid wages and capitalized DSP-4 payments included the unpaid amount of damages for Ms. L.N., which as of November 2, 1998 amounted to KZT 4,270.99 and this debt was paid by Dorstroy OJSC to the plaintiff under expenditure order No. 16 dated April 23, 2001.

According to Part 3 of Article 46 of the Civil Code of the Republic of Kazakhstan, when a legal entity is divided, its rights and obligations are transferred to newly formed legal entities, in accordance with the separation balance.

It follows from this that Dorstroy OJSC, having received the debts of creditors of the 1st and 2nd stages of the liquidated AOOT Karagandadorstroy and fixed assets to repay these debts, became the legal successor of AOOT Karagandadorstroy for these debts and had to pay the plaintiff, as the creditor of the first stage, the amounts due to compensation for health damage. However, by the decisions of the courts of the Karaganda region, S. L.N. The relevant claim against JSC Dorstroy was denied, with reference to the fact that JSC Dorstroy is not the legal successor of JSC Karagandadorstroy, but the plaintiff should have appealed the judicial acts in a higher order, which she did not do, as explained in the court of cassation by the plaintiff's representative. After the transfer of the 1st and 2nd stages of Dorstroy to the creditors' division balance, Karagandadorstroy passed the procedure of out-of-court liquidation according to the rules of Chapter 8 of the Law of the Republic of Kazakhstan "On Bankruptcy" dated January 21, 1997, by contacting the committee of creditors of Karagandadorstroy with a corresponding application to the authorized body - The management of the Committee for work with insolvent debtors in the Karaganda region (UCND), the appointment of the last bankruptcy trustee, that is, JSC Karagandadorstroy, being an insolvent debtor, underwent an out-of-court liquidation procedure under the supervision of the creditors' committee and UCND.

It follows from the above that AOOT Karagandadorstroy was not liquidated in 2000 on its own, as such is possible only if the enterprise is sound and solvent, and in this case self-liquidation occurs according to the rules of Articles 49-50 of the Civil Code, and not the rules established by the Law "On Bankruptcy".

During the liquidation of JSC Karagandadorstroy, creditors of stages 1 and 2 were absent from the register of creditors' claims, since they were transferred to JSC Dorstroy, and taking into account the repayment of debts due to creditors of only the third stage, bankruptcy proceedings were completed, as follows from a copy of the minutes of the meeting of the creditors' committee of JSC Karagandadorstroy and its branches. (including DSP4, where the plaintiff worked) dated December 30, 1999, Then, by order of the Head of the Department of Justice for the Karaganda region dated March 10, 2000, AOOT Karagandadorstroy was excluded from the register of legal entities. Thus, after the transfer of creditors of the 1st and 2nd stages to JSC Dorstroy, AOOT Karagandadorstroy was not the person responsible for compensation for damage caused to the plaintiff's health, and the bankruptcy trustee was not obliged to capitalize payments neither to her nor to other regressors. The legality of the actions of JSC Karagandadorstroy to transfer its debts to another legal entity does not contradict Part 1 of Article 348 of the Civil Code, with the consent of creditors, but none of the creditors of the 1st and 2nd stages, including the plaintiff, challenged this decision in court.

Since the plaintiff did not challenge in a higher order, within the time limits established by law, the decisions of the courts of the Karaganda region to refuse to pay her amounts from Dorstroy OJSC to compensate for damage caused to her health, and the latter was liquidated by order of the head of the Department of Justice for the Karaganda region dated April 20, 2006 according to the rules of art. 49-50 of the Civil Code, that is, by self-liquidation, the plaintiff currently has no grounds to require the state to pay damages, since the state is responsible for the debts of the liquidated enterprise only if it has no or insufficient property and is unable to capitalize payments in this case (Part 3 of art.945 of the Civil Code), and as mentioned above, JSC Karagandadorstroy was not a debtor to the plaintiff after the transfer of its debts to JSC Dorstroy, the latter was liquidated in 2006, without being an insolvent debtor., what follows from its liquidation balance sheet and the conduct of the liquidation procedure by the liquidation commission, and not by the bankruptcy trustee. Thus, the court of cassation found no grounds for revoking the appealed judicial act, as a result, the cassation appeal was dismissed.

It follows from this that Dorstroy OJSC, having received the debts of creditors of the 1st and 2nd stages of the liquidated AOOT Karagandadorstroy and fixed assets to repay these debts, became the legal successor of AOOT Karagandadorstroy for these debts and had to pay the plaintiff, as the creditor of the first stage, the amounts due to compensation for health damage. However, by the decisions of the courts of the Karaganda region, S.L.N. The relevant claim against JSC Dorstroy was denied, with reference to the fact that JSC Dorstroy is not the legal successor of JSC Karagandadorstroy, but the plaintiff should have appealed the judicial acts in a higher order, which she did not do, as explained in the court of cassation by the plaintiff's representative. After the transfer of the 1st and 2nd stages of Dorstroy to the creditors' division balance, Karagandadorstroy passed the procedure of out-of-court liquidation according to the rules of Chapter 8 of the Law of the Republic of Kazakhstan "On Bankruptcy" dated January 21, 1997, by contacting the committee of creditors of Karagandadorstroy with a corresponding application to the authorized body - The management of the Committee for work with insolvent debtors in the Karaganda region (UCND), the appointment of the last bankruptcy trustee, that is, JSC Karagandadorstroy, being an insolvent debtor, underwent an out-of-court liquidation procedure under the supervision of the creditors' committee and UCND.

It follows from the above that AOOT Karagandadorstroy was not liquidated in 2000 on its own, as such is possible only if the enterprise is sound and solvent, and in this case self-liquidation occurs according to the rules of Articles 49-50 of the Civil Code, and not the rules established by the Law "On Bankruptcy".

During the liquidation of JSC Karagandadorstroy, creditors of stages 1 and 2 were absent from the register of creditors' claims, since they were transferred to JSC Dorstroy, and taking into account the repayment of debts due to creditors of only the third stage, bankruptcy proceedings were completed, as follows from a copy of the minutes of the meeting of the creditors' committee of JSC Karagandadorstroy and its branches. (including DSP4, where the plaintiff worked) dated December 30, 1999, Then, by order of the Head of the Department of Justice for the Karaganda region dated March 10, 2000, AOOT Karagandadorstroy was excluded from the register of legal entities.

faces. Thus, after the transfer of creditors of the 1st and 2nd stages to JSC Dorstroy, AOOT Karagandadorstroy was not the person responsible for compensation for damage caused to the plaintiff's health, and the bankruptcy trustee was not obliged to capitalize payments neither to her nor to other regressors.

The legality of the actions of JSC Karagandadorstroy to transfer its debts to another legal entity does not contradict Part 1 of Article 348 of the Civil Code, with the consent of creditors, but none of the creditors of the 1st and 2nd stages, including the plaintiff, challenged this decision in court. Since the plaintiff did not challenge in a higher order, within the time limits established by law, the decisions of the courts of the Karaganda region to refuse to pay her amounts from Dorstroy OJSC to compensate for damage caused to her health, and the latter was liquidated by order of the head of the Department of Justice for the Karaganda region dated April 20, 2006 according to the rules of art. 49-50 of the Civil Code, that is, by self-liquidation, the plaintiff currently has no grounds to require the state to pay damages, since the state is responsible for the debts of the liquidated enterprise only if it has no or insufficient property and is unable to capitalize payments in this case (Part 3 of art.945 of the Civil Code), and as mentioned above, JSC Karagandadorstroy was not a debtor to the plaintiff after the transfer of its debts to JSC Dorstroy, the latter was liquidated in 2006, without being an insolvent debtor., what follows from its liquidation balance sheet and the conduct of the liquidation procedure by the liquidation commission, and not by the bankruptcy trustee.

Thus, the court of cassation found no grounds for revoking the appealed judicial act, as a result, the cassation appeal was dismissed.

 

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases